Lord Denning, one of the foremost British judges of the 20th century, once observed that “a judge must not alter the material of which the act is woven, but he can and should iron out the creases”. The anti-defection law was enacted to deal with the Aya Ram, Gaya Ram malaise or floor crossing by legislators. In the last six years, as many as 119 Congress MLAs in various states have switched sides to the BJP. Between 1967-1971, 142 defections in Parliament and 1,969 in state assemblies had taken place, leading to the collapse of as many as 32 governments. About 212 of the defectors were rewarded with ministerial berths.
The Rajasthan High Court’s interim order in rebel Congress MLA Sachin Pilot’s case may have the undesirable effect of diluting the anti-defection law, curtailing the powers of the Speaker and political leadership of parties including the BJP and damaging the well-established law on legislative privileges. Governor Kalraj Mishra has finally agreed to an Assembly session on August 14. He had thrice rejected Chief Minister Ashok Gehlot’s request to convene the House before announcing the date. The governor’s conduct has not been fair, impartial or constitutional.
Regarding the governor’s powers on convening the Assembly, the Supreme Court in Nabam Rebia (2016) held that the office does not have any discretion in this matter under Article 174. The Rajasthan governor’s questions to the CM, particularly whether he will “take the trust vote”, are in violation of Article 174 and established parliamentary conventions. The SC in cases of defection/dissidence has been insisting on an early floor test so that horse trading is stopped. Governor Mishra’s insistence on 21 days’ notice (now agreed to, taking first recommendation on July 23 into account) will encourage horse trading. Whether all CMs similarly circumstanced get 21 days needs to be seen. The governor is in violation of his oath under Article 159 since, under the provision, he has a duty to preserve, protect and defend the Constitution, not the interests of any particular political party. In Hargovind Pant v. Dr Raghukul Tilak (1979), the Supreme Court has held that the governor is not an employee, and he is not under the control of the central government. He is an independent constitutional entity.
COVID-19 is no excuse to refrain from convening the Assembly session. In Madhya Pradesh, the Speaker, who had adjourned the House when the pandemic was reported, was ordered by the apex court to take the trust vote. Rajya Sabha elections were held in which MLAs of various states participated. A religious event is scheduled on August 5 in Ayodhya. It is the duty of the Speaker to take safety measures, the governor need not worry about it.
The disqualification notice against the rebels has been stayed by the Rajasthan High Court without any detailed, reasoned order. Strangely, after the conclusion of arguments and on the eve of delivery of the judgment, an application was moved to make the central government a party. The high court promptly accepted the request. Why did Pilot in his original petition not make the Centre a party? Why did the eminent advocates who argued for Pilot, not ask the court to issue a notice to the Centre? Why didn’t the high court on its own do so while hearing arguments about the constitutionality of the anti-defection law? While some of the issues framed by the HC are important, others have sought a relook at the law settled by the apex court.
As per the law laid down by the Supreme Court, the HC does not have much of a choice in determining the constitutionality of the anti-defection law. Accepting Pilot’s argument that the Tenth Schedule is unconstitutional as it infringes on the legislative privilege of free speech, will open a Pandora’s box. His central argument is that he cannot be disqualified under Section 2(a) or (b) of the Tenth Schedule because the Assembly is not in session and, therefore, there is no whip. But the anti-defection law does not merely talk of going against the party whip, it also prohibits what it calls “voluntarily given up membership of the party”. Whether a legislator has given up party membership has nothing to do with the legislative assembly’s sessions and whips. Here, circumstantial evidence becomes crucial.
In the law of evidence, we have two kinds of evidence — direct and circumstantial. In most conspiracy cases and high-profile terror cases, accused are convicted based on circumstantial evidence. Pilot has not yet said anything about leaving the Congress. In fact, he has gone on record that he is not joining the BJP. But circumstantial evidence — the governor’s actions, the lawyers representing Pilot, hospitality offered to the rebels in BJP-ruled Haryana, and the fact that the BJP is likely to be the primary beneficiary of Pilot’s revolt — suggests the opposite. Thus, the well-known maxim of res ipsa loquitor — facts speak for themselves — goes against Pilot. In Ravi S. Naik (1994), the SC held that resignation is not necessary for voluntarily giving up party membership and an inference can be drawn from a person’s conduct in this regard.
Clause 6(1) of the Tenth Schedule lays down that the final decision on disqualification is to be taken by the Speaker. Clause 7 of the Schedule explicitly bars the jurisdiction of courts with respect to any matter connected with disqualification under this Schedule. The Supreme Court held in the Kihoto Hollohan judgment (1992) and Jagjit Singh (2006) that the Speaker’s decision is subject to judicial review. In Shrimath Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly (2019), the apex court held that the object of anti-defection law is to stop the lure of political offices or similar considerations and only limited judicial review is available against the Speaker’s decision on the grounds of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. In Pilot’s case, the SC has said it will examine this issue after the Speaker announces his decision.
Notices were issued to Pilot to explain his absence from two meetings of the Congress Legislative Party. These meetings were held amidst allegations of defection. Instead of responding to the notice, the dissidents led by Pilot moved court to challenge the constitutionality of the notice. In the past, courts have upheld circumstances such as going to the governor with opposition leaders and non-compliance with party diktats as fulfilling the requirement of “voluntarily given up membership of the party”. Vice-President Venkaiah Naidu disqualified senior JD(U) leader Sharad Yadav for attending an RJD rally: Neither the Delhi High Court nor the Supreme Court stayed the decision. The law on the violation of short notice is also clear. These rules being of subordinate legislation, are merely directory, not mandatory.
Let this case be used by the government to revisit the anti-defection law and legislatively remove its defects. The Dinesh Goswami Committee in 1990 had proposed limiting disqualification to confidence or no-confidence motion, money bill and voluntarily giving up the membership of a party. It had also recommended that the decision should be taken by the President/governor on the advice of the Election Commission. In 1999, the Law Commission, in its 170th report, suggested that whip should be confined to matters when the government is in danger.
This article first appeared in the print edition on July 31, 2020 under the title ‘When actors cross the line’. The writer is a constitutional law expert. Views are personal.
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